Gilliam v. U.S. Department of Veterans Affairs

Filing 63

OPINION and ORDER granting defendant's 49 motion to dismiss. See Opinion and Order for details. Signed by Judge John E. Steele on 8/3/2018. (CMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
Plaintiff,
v.

Case No:

2:16-cv-255-FtM-29CM

U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion to
Dismiss or for a More Definite Statement (Doc. #49) filed on
February 1, 2018.
7, 2018.

Plaintiff filed a Response (Doc. #53) on March

For the reasons set forth below, the Court grants

Defendant’s Motion to Dismiss.
I.
This case arises out of the 2012 termination of Plaintiff
Edward Lee Gilliam’s employment as a police officer at the Fort
Myers Outpatient Clinic (the Clinic) of the Bay Pines Veterans
Administration (Bay Pines VA).

On February 27, 2017, Plaintiff -

a Protestant, Caucasian male of Northern European descent - filed
a pro se Amended Complaint (Doc. #17) against the United States
Department of Veterans Affairs (Defendant or the VA) alleging
numerous violations of Title VII of The Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., the Fourth Amendment to the United
States Constitution, and 18 U.S.C. § 1001.

On December 12, 2017,

the Court dismissed Plaintiff’s Amended Complaint and granted
Plaintiff leave to file a Second Amended Complaint, limited only
to his Title VII claims.

(Doc. #38.)

Amended Complaint on January 10, 2018.

Plaintiff filed a Second
(Doc. #41.)

As best the Court can gather,1 Plaintiff believes that Bay
Pines VA Police Chief Robert Shogren (Chief Shogren) and Lieutenant
Pete Quimby (Lieutenant Quimby) orchestrated a scheme to sabotage
Plaintiff’s career at the VA by creating “a disciplinary paper
trail against [him],” (Doc. #17, p. 41), which ultimately resulted
in the termination of Plaintiff’s employment.

The alleged motive

or motives for this scheme are not entirely clear to the Court,
but Plaintiff’s “prior turbulent relationship” with Lieutenant
Quimby” (id. p. 41), Chief Shogren’s “corrupt” nature (id. p. 6),
and Plaintiff’s extra-marital affair with another Clinic employee,
Lizabeth Marsh (Ms. Marsh) (id. pp. 8, 12) seemingly all played a
part.2

According to Plaintiff, other individuals were involved in

The Court cites to both the Amended Complaint (Doc. #17) and the
Second Amended Complaint (Doc. #41) for the allegations of fact
relevant to the instant Motion to Dismiss. While ordinarily an
amended complaint supersedes an original complaint, the Eleventh
Circuit has recognized an exception for when the amended complaint
references the original complaint.
Varnes v. Local 91, Glass
Bottle Blowers Ass'n of U.S. & Canada, 674 F.2d 1365, 1370 n.6
(11th Cir. 1982). Because the Second Amended Complaint references
the allegations of fact stated in the Amended Complaint, the Court
treats the Amended Complaint as being incorporated into the Second
Amended Complaint.
1

Ms. Marsh worked as a medical support assistant at the Clinic.
(Doc. #17, p. 9.)
2

- 2 -

the scheme, including Jeff Marsh (Mr. Marsh) - Ms. Marsh’s thenhusband,3 Sergeant Walter Slam (Sergeant Slam), and Officer Ron
Testa (Officer Testa).
Plaintiff claims he made several requests to meet with Chief
Shogren to discuss his concerns regarding his treatment at the
Clinic – particularly related to his relationship with Ms. Marsh
- but was continually rebuked.

(Id. pp. 16, 18.)

On June 15,

2012, Plaintiff filed a request for “informal counseling” with an
EEOC Counselor (id.

p. 18), and he met with an EEOC representative

on July 24, 2012.

(Doc. #17-2, p. 18.) On September 13, 2012,

EEOC Counselor Kelley Schafer sent Plaintiff a letter informing
him that his file was being closed and that he had fifteen (15)
days to file a formal complaint.

(Doc. #17, p. 18.)

Plaintiff

did not do so at that time, but he did attend a mediation session
with Chief Shogren on September 14, 2012.

(Id. p. 16.)

Mediation was unsuccessful and, on September 19, 2012, Chief
Shogren issued Plaintiff a Proposed Removal of Employment letter
(the

Proposed

Removal

Letter),

which

charged

the

following

misconduct: (1) endangering the safety of a supervisor; (2) conduct
unbecoming of a police officer; (3) failure to follow supervisory
instructions; and (4) inappropriate conduct in the workplace.

The

Plaintiff claims that Mr. Marsh searched his then-wife’s cell
phone and photographed explicit text messages she had exchanged
with Plaintiff, which Mr. Marsh then provided to Clinic personnel.
(Id. p. 16.)
3

- 3 -

first charge relates to an incident in June or July 2012 in which
Plaintiff allegedly placed Sergeant Slam in a chokehold.
#17, p. 22.)

(Doc.

The second charge deals with a heated argument (a

“lover’s quarrel”) between Plaintiff and Ms. Marsh at the Clinic
on April 26, 2012, which was overheard by Officer Testa.4
14.)

The third charge

arises out of

(Id. p.

Plaintiff’s disobeying

Lieutenant Quimby’s order that Plaintiff have no contact with Ms.
Marsh during work hours.

(Id.)

The fourth charge is based on the

allegation that Plaintiff and Ms. Marsh engaged in sexual relations
on VA property on or around November 5, 2011.5
Plaintiff

submitted

a

written

response

(Id. p. 16.)
to

the

Proposed

Removal Letter and met with Bay Pines VA Director Susanne Klinker
(Director Klinker) on October 12, 2012 to discuss the charges.
(Doc. #17-4, p. 12.)

In a letter dated October 19, 2012, Director

Klinker sustained the four charges and terminated Plaintiff’s
employment, effective October 27, 2012.

(Id. pp. 9-10.)

Plaintiff then filed a “mixed case complaint” with the Merit
Systems

Protection

Board

(MSPB)

pursuant

to

29

C.F.R.

§

Officer Testa reported the incident one week later, after which
Plaintiff’s “VA law enforcement authority” was suspended. (Doc.
#17, p. 15.)
4

The evidentiary basis for this charge was, in large part, the
text messages provided by Mr. Marsh.
5

- 4 -

1614.302(b),

alleging

(Id. pp. 20, 38.)

discrimination

claims

under

Title

VII. 6

The MSPB held a hearing on April 9, 2014 and

sustained Plaintiff’s termination, finding good cause for the
removal and concluding Plaintiff had failed to show discriminatory
motives underlying the termination.

(Id. pp. 38-39.)

Plaintiff

appealed that decision to the EEOC, which affirmed the MSPB’s
findings on March 2, 2016.

(Id. p. 39.)

This lawsuit followed.

The Court has jurisdiction over Plaintiff’s “mixed” case pursuant
to 5 U.S.C. § 7703(b)(2).

Perry v. Merit Sys. Prot. Bd., 137 S.

Ct. 1975, 1981 (2017); Kloeckner v. Solis, 568 U.S. 41, 50 (2012).
II.
According to Plaintiff, the events underlying these charges
either never occurred (sex on VA property; the no-contact order)
or were overblown (the private “lover’s quarrel” with Ms. Marsh;
the “playful” chokehold).

He contends that the fact that he was

fired and Ms. Marsh – a Hispanic female – was only suspended for
three days proves that the VA discriminated against him based on
his race, national origin, and gender.
Defendant now moves to dismiss Plaintiff’s Second Amended
Complaint.

Defendant contends that Plaintiff has not alleged the

facts necessary to state actionable claims under Title VII.

A “mixed case” is one in which a federal employee alleges that
he was subjected to an adverse “personnel action” that was
motivated, at least in part, by discrimination.
Kloeckner v.
Solis, 568 U.S. 41, 44 (2012); Sarhan v. Dep’t of Justice Fed.
Bureau of Prisons, 716 F. App'x 871, 874-75 (11th Cir. 2017); 29
C.F.R. § 1614.302.
6

- 5 -

III.
Federal
requirements

Rule
for

of

Civil

Procedure

complaints

and

8(a)

demands

a

governs
“short

pleading
and

plain

statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

The United States Supreme

Court has interpreted this language as requiring the complaint to
“raise a right to relief above the speculative level.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atl.

To do so requires

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

This plausibility pleading obligation demands

“more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”

Id. at 555

(citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action,
supported

by

mere

conclusory

statements,

do

not

suffice.”);

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)
(“Factual

allegations

that

are

merely

consistent

with

a

defendant’s liability fall short of being facially plausible.”
(citation omitted)).

Instead, the complaint must contain enough

factual allegations as to the material elements of each claim to
raise the plausible inference that those elements are satisfied,
or,

in

layman’s

terms,

that

the

plaintiff

has

suffered

a

redressable harm for which the defendant may be liable.
If the defendant does not believe the allegations show the
plaintiff is legally “entitled to relief,” it may move to dismiss
- 6 -

the case under Federal Rule of Civil Procedure 12.

In evaluating

a Rule 12 motion to dismiss, the Court must accept as true all
factual allegations in the complaint and “construe them in the
light most favorable to the plaintiff.”

Baloco ex rel. Tapia v.

Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011).

However, mere

“[l]egal conclusions without adequate factual support are entitled
to no assumption of truth.”

Mamani v. Berzain, 654 F.3d 1148,

1153 (11th Cir. 2011) (citations omitted).
A pleading drafted by a party proceeding pro se, like the
Second Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
Fla.

Parole

Comm’n,

787

F.3d

1105,

1107

(11th

Jones v.

Cir.

2015).

Nevertheless, “a pro se pleading must suggest (even if inartfully)
that there is at least some factual support for a claim; it is not
enough just to invoke a legal theory devoid of any factual basis.”
Id.

Put simply, even a pro se complaint must set forth claims the

court has the power to resolve and allege facts showing that each
cause of action is facially plausible.
IV.
A.

Title VII - Discrimination, Harassment, Retaliation
Although the Second Amended Complaint cites only Title VII

generally, the Court will proceed under Section 2000e-16, which
applies to federal employers.

See Canino v. U.S. E.E.O.C., 707

F.2d 468, 472 (11th Cir. 1983) (observing that Section 2000e-16
- 7 -

“is the exclusive remedy for charges brought against federal
employers including reprisals”); see also 5 U.S.C. § 7703(a)(2).
As relevant here, that section mandates that “[a]ll personnel
actions affecting employees . . . in executive agencies . . . be
made free from any discrimination based on race, color, religion,
sex, or national origin.”

42 U.S.C. § 2000e-16(a).

Before continuing, the Court notes that the language in
Section 2000e-16(a) is a bit different from that contained in the
anti-discrimination provision pertaining to private employers.7
The Eleventh Circuit “ha[s] not addressed, in a published opinion,
whether

§ 2000e–2(a)

equivalent.”

.

.

.

and

§ 2000e–16(a)

are

legally

Putman v. Sec’y, Dep’t of Veterans Affairs, 510 F.

App’x 827, 829 (11th Cir. 2013) (per curiam).

It has, however,

noted that “other Circuits have so held” and more than once

42 U.S.C. § 2000e-2(a)(1) makes it an “unlawful employment
practice . . . to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion,
sex, or national origin.” This provision has been interpreted as
protecting
against
“the
creation
or
perpetuation
of
a
discriminatory work environment,” also known as a “hostile work
environment.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2440
(2013); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64-67 (1986).
Title VII also expressly prohibits private
employers from retaliating against an employee “on account of
[that] employee’s having opposed, complained of, or sought
remedies for, unlawful workplace discrimination.” Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013) (citing 42
U.S.C. § 2000e-3(a)).
7

- 8 -

“assume[d] . . . that the coverage is the same.”8

Id.; Thomas v.

Miami Veterans Med. Ctr., 290 F. App’x 317, 319 (11th Cir. 2008)
(per curiam) (“[D]espite the differences in language, Title VII
places the same restrictions on federal agencies as it does on
private employers.” (citing Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007))).

Accordingly, in addressing the viability of

Plaintiff’s Title VII claims, the Court proceeds on the presumption
that those claims are actionable under Section 2000e-16, as they
would be against a private employer under 42 U.S.C. § 2000e-2(a).
1.

Discrimination - Disparate Treatment
a)

Race, National Origin, and Gender

The Court begins by considering Plaintiff’s claim that the VA
discriminated against him because of his gender (male), race
(Caucasian), and national origin (northern European).
“Employment
discriminatory

discrimination

intent.”

Trask

claims
v.

all

Sec’y,

require
Dep’t

of

proof

of

Veterans

Affairs, 822 F.3d 1179, 1192 (11th Cir. 2016) (citation omitted).

Moreover, the pre-split Fifth Circuit held that “the 1972
amendments extending the protections of Title VII to federal
employees . . . were intended to give federal employees the same
rights as private employees,” including “bar[ing] reprisals
against federal employees who file charges of discrimination.”
Porter v. Adams, 639 F.2d 273, 278 (5th Cir. 1981). That holding
is binding precedent on this Court. Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981).
8

- 9 -

Where

no

direct

evidence

of

discriminatory

intent

exists, 9

establishing “a prima facie case for disparate treatment in an
employment discrimination case” requires the plaintiff to show
that: “(1) []he is a member of a protected class; (2) []he was
subjected to an adverse employment action; (3) h[is] employer
treated similarly situated employees outside of h[is] protected
class more favorably than []he was treated; and (4) []he was
qualified to do the job.”

Id. (citation omitted);

see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Establishing

the

third

factor

typically

requires

the

plaintiff to identify a proper “comparator” – that is, someone who
- protected characteristic aside - is “nearly identical” to the
plaintiff.

Id.; see also Silvera v. Orange Cty. Sch. Bd., 244

F.3d

1259

1253,

(11th

Cir.

2001)

(“In

order

to

meet

the

comparability requirement a plaintiff is required to show that he
is similarly situated in all relevant aspects to the [proposed
comparator].”); Jones v. Bessemer Carraway Med. Ctr., 137 F.3d
1306, 1311 n.6 (11th Cir.) (“[N]o plaintiff can make out a prima
facie case by showing just that she belongs to a protected class
and

that

she

did

not

violate

her

employer’s

work

rule.

The

plaintiff must also point to someone similarly situated (but
outside the protected class) who disputed a violation of the rule

Direct evidence “refers to a type of evidence which, if true,
would require no inferential leap in order for a court to find
discrimination.” Bass v. Bd. of Cty. Comm’rs, Orange Cty., Fla.,
256 F.3d 1095, 1111 (11th Cir. 2001).
9

- 10 -

and who was, in fact, treated better.”), opinion modified by, 151
F.3d 1321 (11th Cir. 1998).

“If two employees are not ‘similarly

situated,’ the different application of workplace rules does not
constitute illegal discrimination.”

Lathem v. Dep’t of Children

& Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999).
Plaintiff alleges that “proof” of discriminatory intent for
Plaintiff’s

race,

national

origin,

and

gender

discrimination

claims lies in the fact that, whereas he was fired for the affair,
Ms. Marsh – a Hispanic woman – was only suspended for three days.
Plaintiff asserts that Ms. Marsh is an adequate comparator because
(1) although they shared different immediate supervisors, they
both had “the same ultimate supervisor”; and (2) Plaintiff and Ms.
Marsh both engaged in the same “initial and primary violation.”
(Doc. #41, p. 7.)

Defendant argues that these claims must be

dismissed because it is clear that Ms. Marsh was not “similarly
situated” to Plaintiff.

Without an adequate comparator, Defendant

continues, it will be impossible for Plaintiff to establish the
third element of his prima facie case.
“[A] plaintiff is not required to plead a prima facie case of
discrimination in order to survive dismissal.”

McCone v. Pitney

Bowes, Inc., 582 F. App’x 798, 801 n.4 (11th Cir. 2014) (per
curiam).

Nonetheless, the claim as pled must still be “facially

plausible,”

that

is,

it

must

“allow

the

court

to

draw

the

reasonable inference that [the defendant] [i]s liable for . . .
[the] discrimination [charged].”

Id. at 801.

- 11 -

In other words,

while the failure to plead a particular discrimination element
does not mandate dismissal, it can constitute grounds for dismissal
where it is apparent that the plaintiff will never be able to carry
his burden of proof on that element.

See Evans v. Ga. Reg’l Hosp.,

850 F.3d 1248, 1254 (11th Cir. 2017).
The Court agrees that Plaintiff’s race, national origin, and
gender discrimination claims are facially implausible because
there is no viable comparator.

Although Plaintiff and Ms. Marsh

shared the same ultimate supervisor, Plaintiff and Ms. Marsh worked
under different immediate supervision and had entirely different
jobs (she was a medical assistant and Plaintiff was a police
officer)

(Doc. #17-2, p. 16.)

Moreover, Ms. Marsh was never

charged with infractions comparable to those of Plaintiff.

She

was never charged with endangering the safety of a supervisor (she
was not involved in the altercation between Plaintiff and Sergeant
Slam), conduct unbecoming a police officer (she was not a police
officer), or failure to follow supervisory instructions (she was
not given a no-contact order).

Where the proposed comparator

works in a different department, has different job duties, answers
to a different supervisor, and has fewer disciplinary infractions,
then she is categorically not similarly situated “in all relevant
aspects” and thus “not a proper comparator.”

Foster v. Biolife

Plasma Servs., LP, 566 F. App’x 808, 812 (11th Cir. 2014) (per
curiam); see also Bessemer, 137 F.3d at 1312-13 (no “similarity”
where proposed comparators committed one act of misconduct and
- 12 -

plaintiff committed two); Jones v. Gerwens, 874 F.2d 1534, 1541
(11th Cir. 1989) (“Courts have held that disciplinary measures
undertaken by different supervisors may not be comparable for
purposes of Title VII analysis.”).
There are no allegations in the Second Amended Complaint from
which the Court may infer that another potential comparator exists.
Accordingly,

Plaintiff’s

race,

national

origin,

and

gender

disparate treatment discrimination claims are not plausible on
their face.

See Bessemer, 137 F.3d at 1311 (“If [a] Plaintiff

fails to identify similarly situated, nonminority employees who
were treated more favorably, [his] case must fail because the
burden is on [him] to establish [a] prima facie case.”).
b)

Religion

Plaintiff’s
different.
“was

religious

discrimination

claim

is

a

bit

Plaintiff, who identifies as Protestant, alleges he

stigmatized

fornication.”

for

allegedly

(Doc. #17, p. 47.)

committing

adultery

and

In support thereof, Plaintiff

cites a conversation in which Sergeant Slam stated “he was no
longer interested in having theological conversations with the
Plaintiff, as [they] had done in the past, because the Plaintiff
was now divorced and was in sin with his relationship with Lizabeth
Marsh.”

(Doc. #17, p. 46.)

In further support of his religious

discrimination claim, Plaintiff alleges that Sergeant Slam hid
Plaintiff’s car keys and locked Plaintiff out of his office.
#41, p. 10.)
- 13 -

(Doc.

Plaintiff also points to his pre-termination hearing with
Director

Klinker,

during

which

she

corrected

Plaintiff’s

miscategorization of Mr. Marsh as Ms. Marsh’s “ex-husband” (which
he was not yet) in an “emphatic seething tone” while looking at
Plaintiff with “a piercing glare . . . .”

(Id.)

According to

Plaintiff, this illustrated her “religious concern” about his
behavior, which in turn motivated her decision to fire him.

(Doc.

#17, pp. 45-46.)
Read

liberally,

Plaintiff’s

claim

appears

to

be

one

of

discrimination due to religious “nonadherence,” rather than an
archetypal disparate treatment claim.
claim,

sometimes

referred

to

A religious nonadherence

as

a

“reverse

religious

discrimination” claim, alleges that the failure to conform one’s
religious

beliefs

and/or

conduct

to

an

employer’s

expectations resulted in an adverse employment action.

pious

See, e.g.,

Noyes v. Kelly Servs., 488 F.3d 1163, 1168-69 (9th Cir. 2007);
Shapolia v. Los Alamos Nat. Lab., 992 F.2d 1033, 1037-38 (10th
Cir. 1993); cf. Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 141
(5th Cir. 1975) (“Congress, through Title VII, has provided the
courts with a means to preserve religious diversity from forced
religious conformity.”).
The operative question here is whether the Second Amended
Complaint
claim.

pleads

a

facially

plausible

religious

nonadherence

A plaintiff alleging religious discrimination usually must

- 14 -

establish the same multi-factor prima facie case discussed above.10
Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th
Cir. 2002).

However, a number of Circuit Courts of Appeals have

employed a more relaxed prima facie standard for nonadherence
claims

which

Shapolia,

992

does

not

F.2d

at

include
1038;

the

“protected

Noyes, 488

class”

F.3d

at

factor.
1168–69.

Specifically,
in order to establish a prima facie case in
actions where the plaintiff claims that he was
discriminated against because he did not share
certain
religious
beliefs
held
by
his
supervisors, . . . the plaintiff must show (1)
that he was subjected to some adverse
employment action; (2) that, at the time the
employment action was taken, the employee’s
job performance was satisfactory; and (3) some
additional evidence to support the inference
that the employment actions were taken because
of a discriminatory motive based upon the
employee’s failure to hold or follow his or
her employer’s religious beliefs.
Shapolia, 992 F.2d at 1038; see Noyes, 488 F.3d at 1168 (finding
“instructive” Shapolia’s treatment of “non-adherence” religious
discrimination claims); see also Venters v. City of Delphi, 123
F.3d 956, 972 (7th Cir. 1997) (“We agree with our colleagues in
the Tenth Circuit that the accommodation framework on which the
district court relied has no application when the employee alleges
that he was fired because he did not share or follow his employer’s
religious beliefs.” (citing Shapolia, 992 F.2d at 1038)).

While

The plaintiff must also “present . . . evidence that the
decision-maker knew of his religion” or beliefs. Lubetsky, 296
F.3d at 1306.
10

- 15 -

the Eleventh Circuit does not appear to have expressly addressed
whether a different prima facie standard applies to nonadherence
religious

discrimination

claims,

that

court

has

“repeatedly

emphasized that the requisite showings that make up a prima facie
case are not meant to be rigid or inflexible” and has entertained
cases in which “the evidence does not fit neatly into the classic
prima facie case formula.”

Schoenfeld v. Babbitt, 168 F.3d 1257,

1268 (11th Cir. 1999) (citations omitted).
Ultimately, regardless of whether the Eleventh Circuit would
follow the formula laid out in Shapolia or continue to apply the
traditional discrimination framework, this Court must conclude
that the Second Amended Complaint does not plead a plausible
religious discrimination claim.

First, Plaintiff has not alleged

he was treated worse than a non-Protestant, and thus he has not
pled

a

“routine”

disparate

treatment

Plaintiff may have been upset by
continue

engaging

in

theological

claim. 11

Second,

Sergeant Slam’s
conversations,

while

refusal

that

to

refusal

unquestionably does not constitute an “adverse employment action”
- that is, “a serious and material change in the terms, conditions,
or privileges of employment.”

Davis v. Town of Lake Park, 245

F.3d 1232, 1239 (11th Cir. 2001) (“[T]he employee’s subjective
view of the significance and adversity of the employer’s action is
not controlling; the employment action must be materially adverse

The Second Amended Complaint contains no mention of Ms. Marsh’s
religion, if any.
11

- 16 -

as

viewed

by

a

reasonable

person

in

the

circumstances.”).

Moreover, Sergeant Slam’s alleged hiding of Plaintiff’s keys and
locking Plaintiff out of his office is insufficient to support an
inference that Sergeant Slam’s actions “were taken because of a
discriminatory

motive”

based

upon

Plaintiff’s

nonadherence.

Shapolia, 992 F.2d at 1038.
Finally, while Director Klinker’s termination of Plaintiff’s
employment with the VA was, undeniably, an adverse employment
action, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761,
(1998), her “piercing glare” and the “emphatic seething tone” she
allegedly used when discussing the Marshes’ marital status is
insufficient to permit an inference that she fired Plaintiff
because he did not hold or adhere to her religious beliefs.
2)

Hostile Work Environment – Religious Harassment

Plaintiff also attempts to assert a Title VII hostile work
environment claim based on religious harassment.

“A hostile work

environment claim under Title VII is established upon proof that
‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.’”

Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).
incidents

(unless

discriminatory

extremely

changes

in

serious)
the

- 17 -

‘terms

will
and

not

“[I]solated
amount

to

conditions

of

employment.’”
(1998).
workplace

Faragher v. City of Boca Raton, 524 U.S. 775, 788

Moreover, a “[plaintiff] cannot make actionable ordinary
tribulations

by

turning

a

‘personal

feud’

between

[him]self and a coworker into a Title VII religiously hostile work
environment claim.”

Alhallaq v. Radha Soami Trading, LLC, 484 F.

App’x 293, 296 (11th Cir. 2012) (per curiam).
Even reading the Second Amended Complaint liberally, the
Court can find only one factual allegation12 supporting Plaintiff’s
hostile work environment claim: Sergeant Slam’s aforementioned
refusal to discuss religion with Plaintiff because Plaintiff was
divorced and living “in sin.”

(Doc. #17, p. 45.)

Again, while

this singular incident may have truly offended Plaintiff, it is
not

sufficient

to

allege

a

facially

plausible

environment claim based on religious harassment.13

hostile

work

See Alhallaq,

484 F. App’x at 296 (affirming dismissal of religious harassment
claim brought by Muslim plaintiff who was subjected to constant
Christian gospel music, called “dirty,” and told to “burn in Hell,”

In support of his hostile work environment claim, Plaintiff also
asserts that he was forced to undergo investigation, “thwarted
from contacting the EEOC, wrongfully accused of meeting with [his]
girlfriend outside breaks and lunches, [and] was told by Detective
Tim Torain he would never wear a police badge again.” (Doc. #41,
p. 11.) Plaintiff, however, alleges no facts plausibly indicating
that any of these events were religiously motivated.
12

Plaintiff asserts that the “Hostile Work Environment was not
only based on Religious Harassment but Law Enforcement Harassment
due to race, color, sex, and national origin.” (Doc. #41, p. 11.)
However, Plaintiff alleges no facts substantiating a hostile work
environment claim on the basis of Plaintiff’s race, gender, or
national origin.
13

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since such conduct – “albeit rude and insensitive” – was not
“sufficiently severe or pervasive”).

Indeed, Sergeant Slam’s

decision to not discuss religion with Plaintiff seems the very
opposite of religious harassment.
1)

Retaliation

Lastly, Plaintiff asserts that a “culture of retaliation”
developed after he sought informal counseling with the EEOC on
June 15, 2012.

(Doc. #17, p. 19.)

To establish a prima facie

case of retaliation under Title VII, “a plaintiff must prove that
he

engaged

in

statutorily

protected

activity,

he

suffered

a

materially adverse action, and there was some causal relation
between the two events.”

Goldsmith v. Bagby Elevator Co., 513

F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006)).

Unsurprisingly, “[t]he

filing of an EEOC claim is a ‘statutorily protected activity.’”
Burgos v. Napolitano, 330 F. App’x 187, 189 (11th Cir. 2009) (per
curiam) (quoting Goldsmith, 513 F.3d at 1277)).
Defendant

argues

that

Plaintiff

cannot

establish

the

requisite causal link between his protected activity and the
adverse

action

because

(1)

the

investigation

resulting

in

Plaintiff’s termination began in April 2012, at least two months
before Plaintiff ever contacted the EEOC, and (2) Plaintiff was
fired on October 19, 2012 - more than four months after he
contacted the EEOC.

The Court agrees.

- 19 -

Where “temporal proximity” is the only evidence of a “causal
relation” offered, that proximity must be “very close” to allow an
inference of causation.

Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001) (citations omitted); Grier v. Snow, 206 F.
App’x 866, 869 (11th Cir. 2006) (per curiam).
three months - is unquestionably too long.

Four months – even
E.g., Breeden, 532

U.S. at 273; Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007).

Importantly, however, the proximity clock

begins to run not on the date the plaintiff engages in protected
activity, but on the date the decision-maker gains “knowledge of
[that] protected activity.”

Breeden, 532 U.S. at 273; see also

Smith v. City of Fort Pierce, Fla., 565 F. App’x 774, 778 (11th
Cir.

2014)

(per

curiam)

(“A

plaintiff

establishes

a

causal

connection by showing that the relevant decision-maker was ‘aware
of the protected conduct, and that the protected activity and the
adverse actions were not wholly unrelated.’” (quoting Shannon v.
Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002))).
The Second Amended Complaint – like the Amended Complaint is unclear as to when Director Klinker first learned that Plaintiff
had filed an EEO complaint.14
matter.

In the end, that fact does not

Even if she found out shortly before she decided to

sustain the charges and terminate Plaintiff’s employment with the

Plaintiff asserts that Director Klinker learned that he filed
an EEO complaint in June of 2012, yet provides a quote in which
Director Klinker states she “do[es] not recall.” (Doc. #41, p.
15.)
14

- 20 -

VA, those charges had indisputably already been levied against
Plaintiff and his removal proposed.15

In other words, in deciding

to fire Plaintiff, Director Klinker was merely “proceeding along
lines previously contemplated.”
fact

negates

proximity.

any
Id.;

possibility
see

also

Breeden, 532 U.S. at 1511.
of

causality

Smith,

565

F.

That

based

on

temporal

App’x

at

779

(no

retaliatory causation where employer “had already contemplated
disciplining [plaintiff] before she filed her Charge”).

Since the

Second Amended Complaint contains no other facts from which the
Court may plausibly infer causation, Plaintiff’s retaliation claim
is dismissed.
In its previous Opinion and Order (Doc. #38), the Court
detailed

the

Amended

Complaint’s

deficiencies

and

provided

Plaintiff with specific instructions on how to comply with the
Federal Rules.

However, Plaintiff has failed to resolve those

deficiencies and has again filed an insufficient pleading.

The

Court will afford Plaintiff one last opportunity to file a concise
Third

Amended

Complaint

that

fixes

the

pleading

deficiencies

discussed herein; no further amendments will be permitted.
The Court again strongly encourages Plaintiff to consult the
“Proceeding Without a Lawyer” resources provided at the following
website: http://www.flmd.uscourts.gov/pro_se/default.htm. This site

The September 19, 2012 Proposed Removal Letter, which was
attached to Plaintiff’s Amended Complaint (Doc. #17-4, pp. 4-8),
was issued more than three months after Plaintiff sought EEOC
counseling, thus falling outside the causation proximity window.
15

- 21 -

has tips, answers to frequently-asked questions, and sample forms
which may help Plaintiff generate a clear, non-repetitive Third
Amended Complaint.

Accordingly, it is hereby
ORDERED:
1.

Defendant’s Motion to Dismiss (Doc. #49) is GRANTED and

Plaintiff’s

Second

Amended

Complaint

(Doc.

#41)

is

DISMISSED

WITHOUT PREJUDICE.
2.

Plaintiff may file a Third Amended Complaint within

fourteen (14) days of the date of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this 3rd day of
August, 2018.

Copies: Parties and Counsel of Record

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